Poosaala Ram Prasad v. The Hong Kong and Shanghai Banking Corporation Ltd

CACV 466/2021

[2024] HKCA 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2021

(ON APPEAL FROM HCA NO 279 OF 2021)

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TAXATION REVIEW DECISION
AND CERTIFICATE

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Background

1.This is an application by the plaintiff, ie the receiving party, for a review of the taxation of this bill of costs.

2.On 23 December 2022, the Court of Appeal handed down a judgment allowing the plaintiff’s appeal in part and make the following costs order nisi, which became absolute on 7 January 2023:

(1)  There be no order as to costs below except that:

(a)  the order dated 16 August 2021 for the plaintiff to pay the costs of his summons for leave to adduce further evidence dated 9 August 2021 assessed at $1,040 shall remain intact; and

(b)  the plaintiff is to pay the costs of and relating to his summons dated 19 August 2021 for adducing further evidence.

(2)  The defendant do pay the plaintiff’s costs of the appeal in the Court of Appeal;

(3)  The costs are to be taxed if not agreed.

2.The plaintiff then filed his bill of costs on 4 March 2023, pursuant to the said costs order, which was set down for taxation hearing on 3 June 2024. Within 14 days after the taxation on 17 June 2024, the plaintiff took out the present application for taxation revealed by way of a summons with supporting affirmation.

Legal Procedures for Taxation Review

3.The relevant procedures for this application are governed by Order 62, rule 33 of the Rules of the High Court (Cap 4A). According to Order 62, rule 33(3), the plaintiff must at the time of making his application deliver to the taxing master a written list of objections which should firstly specify the items or amount allowed or disallowed to reach the application its objective, and secondly, state concisely the nature and grant of each of objection.

4.Rule 33(3A) stipulates that if an applicant fails to comply with paragraph (3), the taxing master may dismiss the application.

Items Under Review

5.The plaintiff’s supporting affirmation consist of the following:

•  Two pages of the body referred as review of taxation application of the plaintiff (AA).

•  The outcome of the allowances after the taxation hearing on 3 June 2024 prepared by the defendant’s solicitors marked as Exhibit A of five pages including the covering letter.

•  The defendant’s statement of costs for summary assessment for the appeal hearing on 9 December 2022 prepared by the defendant’s former solicitors marked as Exhibit B of three pages including the covering letter.

6.According to the first page of AA, the plaintiff seemed to object to my failure to use and refer to his latest bill of costs lodged with the court on 21 May 2024 (hereinafter referred as “21/5 Bill”), but such complaint is plainly misconceived.

7.Despite the fact that the 21/5 Bill was launched without leave of the court, I did use and refer to it during the taxation hearing. There are two reasons for me to do so:

(i)  I find that the 21/5 Bill was substantially same as the bill of costs filed on 4 March 2024 of which Master J Wong set it down for taxation by his order dated 16 April 2024.

(ii)  I did stand down the taxation hearing to allow the defendant’s law costs draftsman to cross-check the different page numbers of the two bills and in my view it would not cause any prejudice to the defendant.

In any event, I do not find any valid ground of objection stated on page 1 of AA.

8.The plaintiff listed 10 items on page 2 of AA. However, the plaintiff only stated the nature and grounds of objections for two items, namely, undue delay and printing charges. The other items were all listed without stating the nature of and grounds of objection, which do not comply with paragraph 3 of rule 33. I, therefore, dismiss all non-complying items pursuant to rule 33(3A). I will proceed to review the two aforementioned items.

9.The plaintiff also lodged two written submissions on 5 & 8 July 2024 with an attempt to supplement his list of objections and raise new issues such as the “without prejudice” correspondence. However, I find the submissions did not make good the list of objections. They still fail to comply with paragraph 3 of rule 33.

10.But if my above observation were wrong and the submissions should be regarded as containing a proper list of objections, they still cannot be accepted. Because Order 62, rule 33(3) stipulates that the plaintiff as an applicant for review must at the time of making his application deliver a written list of objections to the taxing master and not 17 to 19 days after the filing of his summons. Therefore, the written submissions do not assist the plaintiff’s review at all.

Undue Delay

11.The plaintiff relied on Order 62, rule 22(7)(a) and submitted that there was no delay in filing his taxation application within 2 years after the completion date which is the date of the Court of Appeal judgment in this case. Rule 22(7) stipulates that:

“A party is not entitled to commence taxation proceedings under rule 21 — (a) after the expiry of 2 years from the completion date; or …”

12.However, the plaintiff failed to mention the other relevant rules. Order 62, rule 22(1) states that:

“If, within 3 months after the completion date, the person entitled to payment of costs has neither —

(a) agreed the amount of those costs with the person liable to pay them; nor

(b) serve upon such person a copy of a notice of commencement of taxation in accordance with rule 21(2),

the taxing master, on the application of a person liable to pay costs and not less than 7 days’ notice to the person entitled to payment of those costs, may make an order under paragraph (3).”

13.Order 62, rule 22(5) stipulates that:

“On the taxation of a bill of costs, whether or not an order has been made under paragraph (3), the taxing master, if he is satisfied that there has been undue delay in commencing taxation proceedings or in proceedings with the taxation —

(a) may make such order as he thinks fit as to the costs of any application or as to the costs of the taxation.

(b) may allow any part of the costs to be taxed pursuant to the costs order; and

(c) may, in relation to the taxed costs or any part of those costs, disallow interest or reduce the period for which interest is payable or the rate at which interest is payable.”

14.During the taxation hearing, the plaintiff submitted that he first wrote to the defendant’s former solicitors to demand for his lump sum costs of the appeal by his letter dated 13 January 2023. The defendant’s former solicitors then replied on 18 January 2023, requesting for breakdown and receipts of the plaintiff’s claim.

15.Plaintiff alleged that he did provide the breakdown by 3 April 2023. I was given to understand that parties did continue their negotiations for settlement of the costs for some time. Owing to change of solicitors, defendant’s current solicitors formally rejected the plaintiff’s offer by the letter dated 20 July 2023. Parties have then ceased further negotiations.

16.The plaintiff mentioned at the taxation hearing that he did attend the High Court registry soon after the defendant’s rejection in July 2023 with a view to commence the taxation proceedings. But he was unable to pay the prescribed taxing fee. It was until December 2023 when the plaintiff’s family members came to Hong Kong and helped the plaintiff to pay the taxing fees. The plaintiff was then able to file notice of commencement of taxation on 28 December 2023 with the bill of costs.

17.As the plaintiff’s first bill of costs filed on 28 December 2023 was ordered to be expunged for irregular format by Master Matthew Leung on 6 February 2024, the plaintiff filed another bill of costs on 4 March 2024 of which Master J Wong granted leave to set down for taxation.

18.It is reasonable to expect the plaintiff to file his bill of costs soon after the defendant’s rejection on 20 July 2023. The delay of more than 7 months to file a proper bill was caused by his personal financial problems and his own fault of filing an irregular bill in the first place.

19.In the circumstances, I do find the plaintiff’s delay in filing bill of costs undue. Therefore, I disallow interest for the plaintiff’s taxed costs from 24 July 2023 (ie, allowing 4 days’ leeway for the plaintiff after defendant’s rejection) to 3 March 2024 (ie, the date before filing of the bill) with both days inclusive.

20.Since I maintain my view in disallowing interest for the said period of time, I disallow the review of this item.

Printing Charges

21.The plaintiff relies on a piece of fresh evidence, namely Exhibit B – defendant’s statement of costs for summary assessment prepared for the appeal hearing on 9 December 2023, to contend that the number of pages of the appeal bundle should be 302 as stated on the defendant’s statement of costs instead of 250 adopted by me at the taxation.

22.I adopted 250 as the number of pages because the plaintiff failed to adduce concrete evidence as to the number of pages at the taxation hearing. Therefore, I adopted the maximum number of pages allowed per bundle according to Practice Direction 4.1.

23.As a taxing master may receive further evidence on reviewing any decision in respect of any item pursuant to Order 62, rules 34(2), and the restrictions upon striking fresh evidence are not applicable to the exercise of a taxing master’s discretion to review a taxation (Hong Kong Civil Procedure 2024 at §62/34/2).

24.I accept the undisputed fresh evidence as per Exhibit B and review my decision on the calculation of the plaintiff’s printing charges item as follows:

•  I adopt 302 as the number of pages in the hearing bundle;

•  I adopt $4 per page as the copying costs in respect of the first hearing bundle pursuant to Part I of the First schedule of O.62;

•  The copying costs of the first bundle are calculated as:

$4 × 1 bundle × 302 pages = $1208

•  I adopt $1 per page as the copying costs in respect of each subsequent bundle pursuant to Part I of the First schedule of O.62;

•  The copying costs of the subsequent bundles are calculated as:

$1 × 4 bundles × 302 pages = $1208

•  The total copying charges for 5 bundles should be:

$1208 + $1208 = $2416

•  As the plaintiff is all along acting in person, his costs should be discounted and entitled to ⅔ of the sum which would have been allowed if he had been represented by a solicitor according to O.62, r.28A(2):

$2416 × ⅔ = $1610.67

25.Upon review of my decision on the plaintiff’s copying costs, I now award $1,610.67 under item 1 of the plaintiff’s bill of costs.

Certificate

26.I certify that save and except for item 1 of the plaintiff’s bill, all the other review items failed for the aforementioned reasons. I also certify that the total amount of taxed costs after review becomes $4,696.67 ($4,419 + $277.67).

Costs

27.Costs should follow the event since all but one review items fail. I therefore order that the plaintiff shall bear 90% of defendant’s costs of this review application. Such costs shall be assessed summarily.

28.Upon hearing parties’ submission on costs and perusal of the statement of costs for summary assessment submitted by the defendant, I deduct 1 hour or $3,200 each from item C1 and C2. Therefore, the total deduction would be $6,400, giving $39,834 for the whole statement of costs.

29.As I have ruled that the defendant is entitled to 90% of his costs, I summarily assessed the defendants’ costs for this application at $35,850 (39,834 × 90 % = 35,850.6 rounded up to 35,850).

The plaintiff (appellant) appeared in person (the Receiving Party)

Mr Jacky Ng, law costs draftsman, instructed by Mayer Brown, for the defendant (respondent) (the Paying Party)